Seibert challenge in Texas

2015At that point in the hearing, the State could have requested to put on more evidence regarding this issue, but it did not do so. 9 We acknowledge that the trial court rendered its findings on remand; however, it made no finding that it had not been aware of appellant’s Seibert challenge at the time of the suppression hearing. 10 The only evidence of this was presented through appellant’s testimony. 11 When the two-step questioning tactic is not deliberately employed, “a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and con

2015At that point in the hearing, the State could have requested to put on more evidence regarding this issue, but it did not do so. 9 We acknowledge that the trial court rendered its findings on remand; however, it made no finding that it had not been aware of appellant’s Seibert challenge at the time of the suppression hearing. 10 The only evidence of this was presented through appellant’s testimony. 11 When the two-step questioning tactic is not deliberately employed, “a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and con

2015See also United States v. Ollie, 442 F.3d 1135 , 1142–43 (8th Cir.2006) (stating that “when a defendant moves to suppress a post-warning statement that he contends was given as part of a question-first interrogation, the prosecution must prove, by a preponderance of the evidence, that the officer’s failure to provide warnings at the outset of questioning was not part of a deliberate attempt to circumvent Miranda ”). 17 See Pena at 464 ,. 18 See id. 19 See id. 20 See Vasquez v. State, 411 S.W.3d 918, 920 (Tex.Crim.App.2013). 21 The majority also relies upon the failure of the trial court to mak

2015See also United States v. Ollie, 442 F.3d 1135 , 1142–43 (8th Cir.2006) (stating that “when a defendant moves to suppress a post-warning statement that he contends was given as part of a question-first interrogation, the prosecution must prove, by a preponderance of the evidence, that the officer’s failure to provide warnings at the outset of questioning was not part of a deliberate attempt to circumvent Miranda ”). 17 See Pena at 464 ,. 18 See id. 19 See id. 20 See Vasquez v. State, 411 S.W.3d 918, 920 (Tex.Crim.App.2013). 21 The majority also relies upon the failure of the trial court to mak

2015But, the trial court was not instructed in this court’s abatement order to make any findings regarding preservation of error or regarding its awareness of a Seibert challenge at the time of the suppression hearing. 22 See, e.g., Pena v. State, 285 S.W.3d 459, 464 (Tex.Crim.App.2009) (holding that appellant failed to preserve error in the trial court as to an appellate complaint, even though the Court of Criminal Appeals previously had vacated the court of appeals’s judgment and remanded to the intermediate court based on a procedural issue regarding the same appellate complaint, without addres

2015But, the trial court was not instructed in this court’s abatement order to make any findings regarding preservation of error or regarding its awareness of a Seibert challenge at the time of the suppression hearing. 22 See, e.g., Pena v. State, 285 S.W.3d 459, 464 (Tex.Crim.App.2009) (holding that appellant failed to preserve error in the trial court as to an appellate complaint, even though the Court of Criminal Appeals previously had vacated the court of appeals’s judgment and remanded to the intermediate court based on a procedural issue regarding the same appellate complaint, without addres

2015See, e.g., People v. Delatorre, B230591, 2012 WL 909659 , *5 (Cal. Ct. App. Mar. 19, 2012) (finding no Seibert violation where officer testified that the “conversation began, we began talking, a rapport was built, and it wasn’t until some facts started to come out that I realized I had forgotten to Miranda.”); State v. Hughes, 272 S.W.3d 246, 255 (Mo. Ct. App. 2008) (finding no Seibert violation where officers’ pre-waiver questioning was to build a rapport).

2015See, e.g., People v. Delatorre, B230591, 2012 WL 909659 , *5 (Cal. Ct. App. Mar. 19, 2012) (finding no Seibert violation where officer testified that the “conversation began, we began talking, a rapport was built, and it wasn’t until some facts started to come out that I realized I had forgotten to Miranda.”); State v. Hughes, 272 S.W.3d 246, 255 (Mo. Ct. App. 2008) (finding no Seibert violation where officers’ pre-waiver questioning was to build a rapport).

2015See also United States v. Ollie, 442 F.3d 1135 , 1142–43 (8th Cir.2006) (stating that “when a defendant moves to suppress a post-warning statement that he contends was given as part of a question-first interrogation, the prosecution must prove, by a preponderance of the evidence, that the officer’s failure to provide warnings at the outset of questioning was not part of a deliberate attempt to circumvent Miranda ”). 17 See Pena at 464 ,. 18 See id. 19 See id. 20 See Vasquez v. State, 411 S.W.3d 918, 920 (Tex.Crim.App.2013). 21 The majority also relies upon the failure of the trial court to mak

2015See also United States v. Ollie, 442 F.3d 1135 , 1142–43 (8th Cir.2006) (stating that “when a defendant moves to suppress a post-warning statement that he contends was given as part of a question-first interrogation, the prosecution must prove, by a preponderance of the evidence, that the officer’s failure to provide warnings at the outset of questioning was not part of a deliberate attempt to circumvent Miranda ”). 17 See Pena at 464 ,. 18 See id. 19 See id. 20 See Vasquez v. State, 411 S.W.3d 918, 920 (Tex.Crim.App.2013). 21 The majority also relies upon the failure of the trial court to mak

2006Applying the Seibert factors to the instant case, we conclude Xu’s second written statement and his oral statement are “close in time and similar in content.” Id. at 615 , 124 S.Ct. 2601 .

2006Applying the Seibert factors to the instant case, we conclude Xu’s second written statement and his oral statement are “close in time and similar in content.” Id. at 615 , 124 S.Ct. 2601 .

2022See Carter, 309 S.W.3d at 41 (“Once a determination has been made that the pre-warning questioning was not part of a deliberate plan to undermine a suspect’s Miranda protections, it is still necessary to determine if [defendant]’s post-warning statements were voluntarily made.”); Foster v. State, 579 S.W.3d 606, 612 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (noting that when defendant receives midstream Miranda warnings and moves to suppress his post-Miranda statements, threshold determination is whether two-step, “question first, warn later” strategy was deliberately employed, and if it

2022See Carter, 309 S.W.3d at 41 (“Once a determination has been made that the pre-warning questioning was not part of a deliberate plan to undermine a suspect’s Miranda protections, it is still necessary to determine if [defendant]’s post-warning statements were voluntarily made.”); Foster v. State, 579 S.W.3d 606, 612 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (noting that when defendant receives midstream Miranda warnings and moves to suppress his post-Miranda statements, threshold determination is whether two-step, “question first, warn later” strategy was deliberately employed, and if it

2015Vasquez, 453 S.W.3d at 566-67 .

2015At no point during the proceedings before the appellate courts was there any confusion about the nature of the claim the Appellant was pursuing.4 And indeed, there is no explicit indication in 3 As the majority opinion notes, on remand the trial court “made no finding that it had not been aware of appellant’s Seibert challenge at the time of the suppression hearing.” Vasquez, 453 S.W.3d at 566 n. 9. 4 It is worth noting that the State’s preservation argument was not presented to the Fourteenth Court of Appeals on original submission or before this Court on the State’s first Petition for Discre

2014See Martinez, 272 S.W.3d at 623 (citing Tex. R.